The PA Constitution does not need "modernized" because hundreds of state legislators enacted the illegal payraise/unvouchered expenses of 2005.
Piccola is wrong. It isn't government that needs reformed - it is the kind of state representatives and senators who are willing to break their oaths of office who need booted out of office. To some extent, that was done with some 55 newcomers elected to state office in 2006 elections. They are currently mounting reforms upon themselves. More hearings on additional reforms are being held, aside from the Piccola hearings on a convention.
There is no need to open up the PA Constitution to a potentially unrestrainable Constitutional Convention.
All of the reforms offered can be done through the normal legislative amendment process.
It is disheartening to hear Sen. Piccola, and others, go on about limiting a convention.
They haven't considered the precedent-setting Philadelphia Convention...
Pennsylvania's Constitutions and the Amendment Process - Where it Began, Where it is Now
By Ann Liivak, former Reference/Special Collections Librarian
23 Pennsylvania Law Weekly 324 (March 27, 2000)
Philadelphia Convention
Less then two weeks after the Declaration of Independence, the citizens of Philadelphia were inspired to form a convention for drafting a constitution for the Commonwealth of Pennsylvania. The Provincial Assembly and the governor were ignored, and the convention not only entered upon the task of forming the constitution, but superseded the old government by assuming the legislative power of the commonwealth and establishing a Council of Safety with extensive powers to rule in the interim.
The elected delegates debated, drafted, and on Sept. 28, 1776, passed and proclaimed the Bill of Rights and Constitution of the Commonwealth of Pennsylvania signed by "Benj. Franklin, Prest." The Constitution of 1776 provided that the power of amending the constitution would rest with a Council of Censors as it found necessary. The Constitution of 1776 was considered one of the most democratic state governmental structures of the times, even though it was not submitted to the electorate for ratification or adoption...
http://www.jenkinslaw.org/collection/researchguides/publications/ann-constitutions.php
Now that's what is called a precedent. If it's done once, without constraints, it can be done again, and there would be no stopping an unlimited convention from replacing not only our Declaration of Rights, but the uniformity clause and who knows what all else...
More coming soon...
Net the Truth Online
Time to revise Pa. Constitution
By Jeffrey E. Piccola
Tue, Apr. 10, 2007
Over the last two years, the actions of Pennsylvania's General Assembly, executive branch, and judiciary regarding pay raises and bonuses, to name just a couple of issues, have sparked a public outcry for the reform of state government. The type of institutional change being called for can be accomplished only by revising the Pennsylvania Constitution.
There are two ways to change the constitution: an amendment by the General Assembly or a constitutional convention. When Abraham Lincoln spoke to the nation in his first inaugural address in 1861, he said of a pending amendment to the United States Constitution: "To me, the convention mode seems preferable to the amendment process in that it allows amendments to originate with the people themselves, instead of only persuading them to take or reject propositions originated by others not especially chosen with a purpose." I believe President Lincoln was right. That is precisely why a constitutional convention has relevance for Pennsylvania state government in this age of reform.
As chairman of the Senate State Government Committee, I held the first of a series of three statewide public hearings a month ago to discuss legislation that would provide for the convening of a constitutional convention. (The second was held in Harrisburg recently.)
The first question these hearings seek to answer is whether this is a proper time to hold a convention. Given the number of scandals that have rocked the state capitol of late, I believe we have reached a tipping point that necessitates a convention. There is precedent for this: The 1874 convention was triggered by a number of scandals. Public outcry at the time was such that a convention was warranted. I believe we are facing a similar set of precipitating circumstances now.
Second, can the changes that have been proposed in the current climate be adequately addressed in the traditional way of amending the constitution, or is a convention merited at this time? Since 1968, amendments to the constitution have been made in a piecemeal fashion. Amendment proposals can be initiated only through the General Assembly and must pass two consecutive legislative sessions before they can be put before voters. Further, each amendment can encompass only one subject. This is an arduous process that can take up to four or more years to accomplish. A convention could bypass this long process and place multiple amendments before the people within a year or two.
Third, what would be the structure, operating procedure and mechanics of such a constitutional convention, including decisions regarding the number of delegates, timeline, and place of the meeting?
The 1968 convention is our nearest model of reference, but unfortunately, that model is dated. Delegate selection in 1968 was controlled by the county parties, which would surely be unpopular today. The 1968 convention had a limited three-month time frame, which in my judgment would not afford enough time for serious deliberation. In addition, the Internet may allow the citizens to have direct participation in the convention process. All of these factors must be considered when crafting a convention.
The final reason for conducting these hearings is to discuss what limits and subject matter should be placed before a convention for its consideration. Should we restrict the convention's reach to a few specific items that go to the core of how government functions in Pennsylvania? If so, what should those subjects be? A constitutional convention may not be the best forum to tackle controversial social issues. However, it may be the perfect body to discuss the legislative process, the size of the General Assembly, term limits, salaries for legislators and judges, and reapportionment.
During the public hearings, witnesses from a broad spectrum of viewpoints have testified, and I invite the citizens of Pennsylvania to provide us with their testimony. A window of opportunity for reform now exists, but how long that window might be open, or even how wide it is, are not yet known.
State Sen. Jeffrey E. Piccola is a Republican who represents Dauphin and York Counties.
http://www.philly.com/inquirer/opinion/pa/20070410_Time_to_revise_Pa__Constitution.html
http://www.piccola.org/
14 comments:
Comparing the Philadelphia Convention to modern, limited state conventions is folly.
Prof. Williams' testimony at the Philly hearing provided evidence that if the enabling act for the convention specifies limitations, and the authorizing referendum the voters approve includes those limitations, they have been found to be binding, as a vote of the sovereign people reigns supreme.
Beyond this, in PA in 1874, there was a court challenge to the convention's findings because the convention tampered with Article I despite its exclusion in the enabling act.
The Court found that it had no power to overturn the results since the people had already voted to approve them. However, if the challenge would have been filed after the convention adjourned, but before the people voted on it, there would have been cause to intervene.
I urge you to contact Senator Piccola's office to obtain copies of all the testimony given, rather than relying on media reports from someone who only heard part of it.
Regrding the 55 newcomers in the state legislature, only ONE of them is abiding by Article II, Section 8.
At that rate, it will be 500 years until we have a legislature full of obedient public servants.
Yup, I'm sure they're anxious to make the tough choices required to reform state government. Tell me: how many of them do you think would vote to make themselves part-time? How many would vote to eliminate their own seat? How many would voluntarily give up their unconstitutional pensions and perks?
And how will the Courts react when the Legislature tries to correct the power given to the Judiciary by the Article V provisions specifically designed in the 60's by the PA Bar Association?
Who do you know that has willingly given up any of their power or perks, regardless of whether it was obtained legally or illegally?
Finally, on the 1776 convention, they weren't "inspired" to hold a convention out of the blue.
All 13 colonies were requested to do so by a resolution of Congress on May 15, 1776 in anticipation of breaking ties with England. The governor and legislature at the time were agents of the monarchy, so ignoring them was the proper thing to do in joining the independence movement.
Or perhaps you'd prefer: "Please sirs, might we have a bit of freedom?"
Seriously now, oops let's not use the convention that threw off the bounds of TYRANNY. Let's not use the two conventions which didn't submit the new or revised Constitution to the people for ratification.
No, let's not use those precedent setting ones in 2008 cause the governor and legislature at the time were agents of the monarchy, so ignoring them was the proper thing to do in joining the independence movement.
What is the difference a monarchy, the governor and the legislature at the time agents of the monarchy, and a despicable body of payjackers, and governor with kingdoms and feifdoms, who according to you won't reform themselves?
Isn't TYRANNY, TYRANNY?
Or perhaps you'd prefer: "Please sirs, might we have a bit of freedom?"
That's silly, I'm arguing the people of today don't have to ask just like the people at the time of the Philadelphia Convention didn't have to ask.
After all... not much difference
Constitution of Pennsylvania - September 28, 1776 (1)
WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man; and whenever these great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness.
and this
Political Powers
Section 2.
All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.
Now the people either have at all times an inalienable and indefeasible right... or the people do not.
Maybe only when a KING or MONARCHY is in power and strangleholding us - then we have the power cause that was the proper time, proper thing to do, proper manner?
The Philadelphia convention didn't ask, did it? Nor was it limited in alteration or abolishment of government, and oh let me see I don't see a qualifier in Artice I Section 2 pertaining only to a monarchy... do you?
I only see the word government.
The present Constitution has structural defects, you say?
It's time for a second American Revolution, you say?
There's a crisis of confidence in government, you say?
But hey, the people must use restraint during a citizens' constitutional convention of 2008?
The Philadelphia Convention stands as a fact of a power "the people" then held. It is not folly to cite it - it is the people's inalienable right to cite it and to act similarly, and I argue, to act beyond and set their own precedent.
It doesn't stand as a power "the people" once held, but no longer hold because hey we (some) of the people only want a so-called modern, limited convention to "modernize" our PA Constitution, just a little.
You're professing a citizens' convention? You're willing to attempt to limit the people's potential similar revolutionary voice to that of the people of 1776 to alter, reform, or abolish their government?
Who are you to limit the people from accomplishing all three should they so want? Who is the legislature to attempt to limit the people from accomplishing alteration, reform, and abolishment of government if "the people" so want?
None can so limit precisely because the people of 2007-2008 must equally have the same power as those inclusive of previous conventions, and as well beyond previous conventions, to set their own precedent, and to completely alter or abolish their government, or else we are not a sovereign people who likewise reign supreme in OUR OWN TIME.
My argument is emphatically against any convention period because the people of Pennsylvania in a 2008 convention have the same supreme power and sovereignty as the foregoing "the people" in the Philadelphia convention or other conventions.
''08 "the people" have no less power than any of "the people" that came before.
In the convention so called by the people, the delegates ARE NOT representing "the people" in a representative form of government.
The body of delegates in the convention ARE THE PEOPLE.
Once "the people" call the convention, the convention delegation IS THE SUPREME PEOPLE, and indeed, the sovereign people reign supreme.
Nothing that came before binds the 2008 supreme people - they are sovereign in the convention.
Likewise it is "the people" who will have acted in the convention.
(presupposing limitations had been imposed by voter referendum, limitations ignored by an overwhelming majority vote of delegates, and results objected to by a minority of delegates how about 2) in my estimation in any challenge to the convention results the Court (if there still is one) would find likewise that it has no power to overturn the results precisely because the poeople have already spoken in the convention.
How could that happen?
As the convention is the people, and they act to adopt new rules and procedures to conduct the convention they could not only determine whatever "majority" they want to adopt amendments and the revised, reformed, or new constitution, they can determine a different method of ratification from the current constitution.
See 1776 and 1790
http://www.legis.state.pa.us/WU01/VC/visitor_info/creating/constitution.htm
You say:
The Court found that it had no power to overturn the results since the people had already voted to approve them. However, if the challenge would have been filed after the convention adjourned, but before the people voted on it, there would have been cause to intervene.
You still don't accept the clean slate a 2008 convention would have by its very nature.
If the people of today don't start from a clean slate then "the people" of 2008 are unequal to "the people" of the Philadelphia Convention and they are unequal to previous conventions which acted contrary to limitations.
If that is the case, then we are NOT A SOVEREIGN PEOPLE.
However, if the challenge would have been filed after the convention adjourned, but before the people voted on it, there would have been cause to intervene.
Doesn't matter, there would have been CAUSE to intervene. That was then, this is now.
right to alter, reform, abolish government - the words aren't in there for show.
The people - at all times - means lastly - during the convention as the delegates.
In your testimony, you said:
But even in the absence of mandated methodology, the Constitution itself can still guide us in organizing a proper convention.
http://www.pacleansweep.com/rhd032607.html
What you leave out is the precedents guide in organizing a convention as well.
The delegates can likewise ignore any guidelines and organize however they determine once convened.
In your testimony you said
Members of this committee have already acknowledged the ultimate power of the people enumerated in Article I, Section 2, and that any convention held today should be a citizens' affair. The committee has also voiced a preference for the exemption of Article I, and this falls squarely in line with Section 25, which states that the enumerated rights of Article I "shall forever remain inviolate."
Section 25 reads
Reservation of Powers in People
Section 25.
To guard against the transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
Who is declaring the reservation of powers - "the people."
To whom are the powers reserved - "the people."
Who are the people warning - the government.
Why are they warning? To guard against transgressions of the high powers we have delegated
excepted out of the GENERAL POWERS OF GOVERNMENT
it is government denied from violating or touching everything in this article.
But the people themselves in a constitutional convention can reword, revise, expand, or eliminate Article I Section 25 because it is not forever inviolate to themselves
precisely because the people have reserved the powers to themselves.
Democracy rising
If voters want to make these changes to Sections 1 and 26, however, they may not be able to. Section 25 - Reservation of Powers in People states that "everything in this article [Article 1] is excepted out of the general powers of government and shall forever remain inviolate." This appears to mean that voters cannot repeal other portions of Article 1.
http://www.democracyrisingpa.com/index.cfm?organization_id=66§ion_id=1049&page_id=4261
Correct that the voters cannot repeal.
The convention delegates can.
I see what you're getting at, but there are two problems with your line of argument.
I would argue that because a convention would be opened by an act of the legislature, the delegates would not be the people per se, but representatives of the people in a quasi-legislative body.
The people's authority and full control over the right to alter, abolish or reform government is expressed at the polls, both in authorizing the convention and ratifying its proposals.
The limitations serve as further insurance, providing opportunities to use the current Court system to challenge the proceedings at any time before final ratification by the people at the polls.
Once a convention is called, the current government continues to serve and function while the convention is meeting. If you view this as abolishing the old government and replacing it with a new one accompanied by suspension of the old version immediately upon the vote to approve a convention call, your fears are warranted.
But that's simply not the case.
The limitations serve as a bridge between the two, regulating the convention under the continuation of the current system.
The People are just as sovereign now as they were in 1776.
A limited convention, with its mandates being approved at the polls, is a consensus among the people to have their representatives, the delegates, do certain things and not others. And if those boundaries are crossed, the people have legal cures they can seek out (and I'd be the first to the courthouse).
The limitations acknowledge your fears and address them head-on.
On the other hand, the Democracy Rising folks have contemplated holding a convention without any legislative approval. Now that is something to fear, as it would be more comparable to the 1776 and 1790 deals.
But let's suppose they did that. How on earth would they impose that new model? Ask permission? Force of arms? Boycotting government through the witholding of tax revenues?
It occurs to me that some folks in PA tried setting up an alternative government in 1777, but were arrested and charged with treason.
And just so you're clear on how I view them, while I see the nature of the 1776 convention as justified, in that the people made a distinct decision to change sovereigns, the 1790 convention was highly illegal.
And what about the chain of authority created by the states sending representatives to the Continental Congress, who resolved that the 13 colonies each write constitutions? Might that give some legitimacy to the convention "ignoring" the governor and legislature in 1776? And did they truly "ignore" them? What were the reactions by the governor and legislature to these miscreants?
Let me get going with this - it may take me a while to address your other offerings.
Once a convention is called, the current government continues to serve and function while the convention is meeting.
If you view this as abolishing the old government and replacing it with a new one accompanied by suspension of the old version immediately upon the vote to approve a convention call, your fears are warranted.
But that's simply not the case.
Oh my goodness, what was that all about? I don't view anything of the sort.
A convention call does not suspend the current PA Constitution and doesn't alter the government in Harrisburg.
However, after the convention is called and convened delegates by whatever "majority" vote they decide can indeed REPLACE the old PA Constitution with a completely different constitution.
That Constitution has the potential to alter our current form of government, or ABOLISH our current form of government.
That is a fact. The potential exists for a new PA Constitution and a different form of government.
There is nothing to dispute that a new Constitution could be adopted by the delegates in the convention.
In fact, the delegates could stop at adopting the new Constitution themselves, and not submit it for ratification or adoption by the voters.
That Constitution becomes the law of the PA land.
As I've stated previously - it is unlikely a Court (if one still exists) will find it has the power to void the convention's acts because the Court must recognize the convention and its delegates are "the people."
I see what you're getting at, but there are two problems with your line of argument.
I would argue that because a convention would be opened by an act of the legislature, the delegates would not be the people per se, but representatives of the people in a quasi-legislative body.
You can argue that all you want, and now I am coming to see why you may want it to be that way.
You are either forgetting or leaving out that the convention is convened upon the referendum submitted to the voters - who authorize the convening of a convention.
As such - what the voters are authorizing is not mere representation of them, once removed from them, or half or partial representation in a "quasi" legislative body.
They already have that in representative government.
The voters are authorizing a potential to alter, reform or abolish government. That power resides in "the people.' That's why the convention is "the people."
"representative" Government isn't going to abolish itself, is it?
No, that's why the means to do so other than armed uprising by the convention method.
That's why the delegates in the convention are not a quasi-legislative.
That's saying the only power delegates would have in a convention is to present amendments to the Constitution of PA, when that is not by any means the only power delegates have in a convention.
The people's authority and full control over the right to alter, abolish or reform government is expressed at the polls, both in authorizing the convention and ratifying its proposals.
Let's stop at ratifying its proposals, because you realize by now the delegates in the convention can indeed choose another or no means of such ratification. But wait, I'll take that back because you'd like the process for ratification of the convention's proposals to be spelled out and regulated ahead of time as well.
So now according to you the time of "the people's" voice is a two-time shot - before the convention (at the polls) and after the convention by again voting to ratify the convention's proposals. Both times, at the polls.
You'd like to say "the people" are home, safe in their houses, knowing that the convention delegates are only going to do what the limitations spell out for them to do.
You want the voters to be "the people" upfront upon the call for a convention so you can say "the people" will determine beforehand - prior to the convention - whether or not they want to have a "new" Constitution, or alter, reform, or abolish government!
That isn't the real deal. That cannot be the case primarily because as I said before the people of 2008 must have the same and equal sovereignty as those who came before. And what came before as you know was adoption of a new PA Constitution replacing the frame of government.
Further, the people have - at all times - the inalienable and indefeasible right... if they only have this right upfront, before a convention, voting at the polls (and later the good delegates maintained the ability for the voters to go again to the polls to ratify proposals) - then the people of today are not equal to the people of yesteryear.
Again, that cannot be true.
The limitations serve as further insurance, providing opportunities to use the current Court system to challenge the proceedings at any time before final ratification by the people at the polls.
Limitations are insurance.
Yep insurance so there is the same Court system in place to challenge the proceedings.
You don't want to believe the limitations are meaningless once the delegates are convened in the convention because then there is no insurance.
You still fail to understand or you simply don't want to understand that the delegates can choose a different method of "final ratification by the people at the polls."
there is precedent in the Philadelphia Convention, period.
But the 2008 delegates don't have to follow precedent. They can set their own precedent.
If they cannot, they are not equal in power to "the people" who came before.
The limitations serve as a bridge between the two, regulating the convention under the continuation of the current system.
Again, the current system continues under the Constitituion we have.
A new PA Constitution could implement an entirely new system.
That is a fact. That may not be what you and others desire, but it is indisputable fact that a convention of delegates can vote contrary to what they were "told" to do, or even "said" they would do, beforehand.
And no amount of saying that is not going to happen this time, ensures anyone it cannot happen, or will not happen.
There is no such legislative approval when the call for a constitutional convention is called in a referendum put to the people.
Is that not what you are proposing? A call for a citizens' constitutional convention - by the people?
Please correct me if I misunderstand what a citizens constitutional convention of 2007 is.
Is it one called by the people, or is it one called by the legislators?
It is initiated by the legislature, affirmed by the people and subject to the limitations set forth in the enabling act when included in the authorizing referendum.
You should do some more research on whether such limitaions are enforceable. They are, and they have been. Other precedent has been set since 1776.
If the enabling act creates a general convention, it's a different story. But not a limited convention.
In '67 they stuck to the limitations. Why is that? And why would 2007 be any different?
We'll just have to see whether the 2008 convention wants to "test" the theorizing... precedents, court rulings, federal constitution's Ninth Amendment, and all. Nobody has a crystal ball on future history.
http://www.constitution.org/rsh/concon_jr.htm
2008 could be different than any other, that's my point. Why would it go beyond limitations and test the system? Discussions in the convention could show for instance a desire to eliminate
Power of Suspending Laws
Section 12.
No power of suspending laws shall be exercised unless by the Legislature or by its authority.
Just a thought
You said:
The Court found that it had no power to overturn the results since the people had already voted to approve them. However, if the challenge would have been filed after the convention adjourned, but before the people voted on it, there would have been cause to intervene.
Again, Hoar discusses that in the chapters I cited. Only in certain specific instances could the court be considered to have a potential claim to "intervene" before the document produced in a convention was sent to the people to be ratified by them - and it was shown in the discussion - that potential was itself - doubtful.
Post a Comment